Judgment:
B. Prakash Rao, J.
1. Heard Sri B.G. Ravinder Reddy, learned Counsel appearing on behalf of ESI Corporation and Smt. I. Mammu Vani, Sri G. Purushotham Rao and Sri C. Prakash Reddy, learned Counsel appearing on behalf of the appellants and Smt. A. Chayadevi, and Smt. Tara Sharma, learned Counsel for the respondent-claimants.
2. Since common question arises out of all these appeals, they have been taken up together for disposal.
3. It is not necessary to be gone into the facts in detail having regard to the nature of question which is raised on behalf of the appellants herein, therefore, the same are not being repeated in each of these cases except to the extent indicating that all these cases arise out of a claim for compensation under the provisions of the Workmen's Compensation Act, 1923, for the injuries which they have sustained during the course of their employment and set up their claim. In CM.A. No. 1141 of 1999 as per the medical evidence the extent of disability is shown at 70% whereas the loss of earning capacity is assessed at 90%. In C.M.A. No. 779 of 2005 the extent of disability as shown from the medical evidence is at 25% whereas the loss of earning capacity assessed is 50%. In C.M.A. No. 810 of 2005 the extent of disability as per the medical evidence is assessed at 25% whereas the loss of earning capacity is shown at 50%. Lastly, in C.M.A. No. 1032 of 2005 the extent of disability suffered as per the medical evidence is at 25% whereas the loss of earning capacity is shown at 50%.
4. There is no dispute or any challenge as regards all other findings as to the negligence or monthly income. The only plea which is urged on behalf of these appellants is to the effect that having regard to the medical evidence available on record showing the lesser extent of disability, the loss of earning capacity again go beyond and necessarily it has to be on the same percentage but not above. Therefore, in all these matters the Court below went wrong in assessing the earning capacity far beyond the extent of disability which the injured claimants suffered.
5. Repelling the aforesaid contentions it has been pointed out on behalf of the claimants that both these aspects, especially, the extent of disability each one suffers and the loss of earning capacity, cannot go together and each case has to be decided on the facts and it need not necessarily to be restricted only to the extent of disability and it can certainly go far beyond or more than the percentage of disability.
6. On considering the aforesaid submissions in detail and on perusal of the material on record, the only point which arises for consideration is as to whether on the facts and circumstances of each case the loss of earning capacity should be restricted only to the extent of disability which the injured claimants sustained.
7. At the out set, as already stated above there is no dispute in regard to the chequered events leading to the present claim before the authority constituted under the provisions of the Workmen's Compensation Act. There is also no serious dispute in regard to the disability which the individual claimants have suffered in all these cases. Therefore, the only aspect which has to be considered is as to whether the extent of disability is a final one to be taken into account for assessing the loss of earning capacity.
8. Before one proceeds for considering the aforesaid question, it is relevant to take note of the provisions of the Employees State Insurance Act, 1948 (for brevity 'the ESI Act').
9. Section 2(15-A) of the ESI Act defines the 'permanent partial disablement' which reads as follows:
permanent partial disablement means such disablement of a permanent nature, as reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of the accident resulting in the disablement:Provided that every injury specified in Part II of the Second Schedule shall be deemed to result in permanent partial disablement.
10. Similarly, Section 2(15-A) of the ESI Act defines the 'permanent total disablement' which reads as follows:
permanent total disablement' means such disablement of a permanent nature as incapacitates an employee for all work which he was capable of performing at the time of the accident resulting in such disablement:Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more;
11. From the above, under either of the aforesaid definitions, the disablement is the one to such an extent which reduces the earning capacity of an employee in every employment which he was capable of undertaking at the time of accident and the proviso therein again contemplates that every injury specified in Part II of the Second Schedule should be result to permanent partial disablement and again under proviso to Section 15B also it reiterates that permanent total disablement shall be deemed to result from every injury specified in Part I of the Second Schedule or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more.
12. Having regard to the aforesaid references to both the extent of disablement and also the loss of earning capacity much stress has been laid on behalf of the appellants herein to see that necessarily the extent of disablement should only mean the extent of loss of earning capacity but not beyond. No doubt, the Second Schedule gives in detail the description of each injury and percentage of loss of earning capacity. In view of the same, it is the contention on behalf of the appellant that the same has to be adhered to while assessing the compensation by taking into account the loss of concerned earning capacity. In this connection, it has to be seen that the reliefs are the one which are arising under the provisions of the Workmen's Compensation Act which provides for the remedies to claim compensation for such claimants who have sustained injuries. Section 4 which is the substantive provision laying down the principle for the purpose of assessing the compensation, of which Section 4(1)(c)(ii) reads as follows:
Section 4(1)(c) : Where permanent partial disablement results from the injury: (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement, as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury;
13. To the same provision, the Explanation II which is added reads as follows:
Explanation II.--In assessing the loss of earning capacity for the purposes of Sub-clause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity, in relation to different injuries specified in Schedule I;
14. On a bare reading of the aforesaid provision, and having regard to the reference to both the extent of percentage of disablement and the loss of earning capacity, it amply leads to a conclusion that necessarily the extent of disablement which one suffers has to be one of the factor for assessing the percentage of loss of earning capacity. However, this provision does not contemplate that once extent of percentage of disablement is fixed, the same has to be taken as the sole core basis for assessing the earning capacity. Even on a reading of the aforesaid definition clause in the ESI Act, it nowhere contemplates that the said percentage as contemplated either way should be a final one or should have a co-relation and not allowing one to go either against or over and above. Therefore, it cannot be said that the submission made on behalf of the appellant that the extent of disability can form the core or final basis for assessing the loss of earning capacity cannot be accepted.
15. In this connection, it now necessitates to consider the various references made to the principles laid down in this regard.
16. In Pratap Narain Singh Deo v. Shrinivas Sabata and Anr. : (1976)ILLJ235SC , the only principle which has been laid down is to the effect that on failure to pay the compensation as arisen under the provisions of the Workmen's Compensation Act, 1923, the employer will be liable to pay the interest and penalty.
17. In Oriental Insurance Co. Ltd. v. Mohan and Ors. : (2003)IIILLJ890Mad , the High Court of Madras considering the similar such question where the medical evidence showed the extent of disability at 48% but the Commissioner having awarded the compensation of 100% loss of earning capacity since he cannot drive any vehicle, such an approach was upheld.
18. In Oriental Insurance Co. Limited, Hyderabad v. Koti Koti Reddy and Anr. : (2000)IILLJ552AP , a learned Single Judge of this Court considering a case where the driver of the bus who sustained the injuries resulting in 30% of permanent disability since he was not able to drive the vehicle any longer on such disability, therefore, the action of the Commissioner in ordering the compensation treating the loss of earning capacity as 100% was upheld.
19. In New India Assurance Co. Ltd. v. Ponnammal and Ors. : (2003)IIILLJ111Mad , on considering the above said provisions, it was held that in regard to the determination of loss of earning capacity it is not necessary to be a co-extensive with the physical capacity and certainly the former does not prove the latter and in case a non-scheduled injury, deduction in earning capacity will have to prove as a fact.
20. In National Insurance Co. Ltd. v. Mubasir Ahmed and Anr. : (2007)ILLJ1035SC , the Supreme Court considering a case of the permanent partial disablement in regard to the injuries which have not been specified in Schedule I it was held as a relevant factor that the loss earning capacity is not a substitute for percentage of physical disablement, however, it is one of the factors to be taken into account.
21. In Lingampally Rajam v. Colliery Manager, M.P.S.C. Co. Ltd. : 2000(1)ALD554 , a learned Single Judge of this Court in a case where the permanent disability from the injuries shown to be at 50%) on a medical evidence the loss of earning capacity was taken at 100%.
22. In Oriental Insurance Co. Ltd. v. Kashim and Anr. : 1996(1)KarLJ417 , a learned Single Judge of Karnataka High Court considering the above said provision where the medical practitioner estimated the permanent disability at 50%, having regard to the nature of injuries and to a driver of heavy motor vehicle, who can no longer drive such a vehicle, loss of earning capacity was taken at 100%.
23. In Rayapati Venkateswar Rao v. Mantai Sambasiva Rao and Anr. : 2001(1)ALD435 , a learned Single Judge of this Court has taken into account the medical evidence in respect of the injuries showing the extent of disability at 20 to 25%, but having regard to the fact that the workman was totally incapacitated and unable to perform his duties what he is performing on the day of accident, even though the physical disability sustained is 20 to 25%, it was held that he loses his earning capacity by 100%.
24. In National Insurance Co. Ltd. v. Mohd. Saleem Khan and Anr. A.A.O. No. 1153 of 1988, dated 9-9-1991, a learned Single Judge of this Court held that the Doctor's Certificate about physical disability is immaterial in deciding the question of total disablement.
25. In New India Assurance Co. Ltd. v. K. Yadaiah and Anr. : 2005(3)ALD509 , a learned Single Judge of this Court considering a case where the injuries resulted 60% of permanent disablement, the loss of earning capacity was assessed at 100%, by taking into account the opinion that the injured received injury of limping and shortening of left lower limb and injured cannot bend forward and he cannot drive the vehicle.
26. From the above decisions and principles laid down thereunder, the only conclusion which can be arrived at is to the effect that be it a scheduled injury or non-scheduled injury, the extent of disability as proved or held to be proved by any medical evidence, will not be a final word in regard to the assessment of compensation for the loss of earning capacity. Each case has to be considered from its own facts and vis-a-vis the nature of employment and the duties with which one is concerned about. Therefore, having regard to the nature of injuries irrespective of the extent of disability if one is not able to perform the duties, the same as he was doing earlier or he could do, necessarily, the loss of earning capacity will have to be far more than the extent of disability.
27. Having regard to the aforesaid principles laid down, we do not find any merits in the contentions urged on behalf of the appellant and there is no merit in the above appeals.
28. Accordingly, the civil miscellaneous appeals are dismissed. No costs.